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Jharkhand High Court · body

2017 DIGILAW 2093 (JHR)

Surendra Gope v. State of Jharkhand

2017-12-05

S.N.PATHAK

body2017
ORDER : 1. Heard learned counsel for the petitioners and learned JC to SC-V for the State. 2. The petitioners have approached this Court with a prayer for appointment to the post of Panchayat Sewak/Panchayat Sachiv in view of the fact that they are continuously working on the post of Dalpatis and are fulfilling all the requisite qualifications for appointment on the post of Panchayat Sewak/Panchayat Sachiv. Further prayer has been made for approval of the recommendation of the Deputy Commissioner dated 24.11.2012 for appointment of the petitioners with all consequential benefits including salary payable to Panchayat Sewak. 3. The facts as derived from the writ petition are that the petitioner No. 1 is a Graduate in Commerce and his date of birth is 10.01.1965 and was appointed on 15.07.1994 and his service was confirmed on 07.08.1994. The petitioner no. 2 is a matriculate and his date of birth is 01.10.1966 and he was appointed on 31.10.1994 as Dalpati and his service was confirmed on 02.01.1994. Similarly, the petitioner No. 3 is a Graduate and his date of birth is 05.08.1965 and he joined the service as Dalpati on 26.03.1995 and his service was confirmed on 05.05.1995. Petitioner Nos. 1 and 2 completed their training in the year 2006, whereas, the petitioner No. 3 has completed his training in the year 2004. Thereafter, the gradation list was published on 18.03.2011 for the purpose of appointment to the post of Dalpati. The names of the petitioner Nos. 1, 2 and 3 finds place at S. Nos. 64, 66 and 76 respectively. It is the case of the petitioners that Deputy Commissioner, West Singhbhum issued letter dated 29.05.2012 to the Director, Panchayati Raj Directorate, Govt. of Jharkhand annexing the list of 13 left over Dalpatis for appointment on the post of Panchayat Sewak in which names of petitioner Nos. 1, 2 and 3 appear at S. Nos. 4, 6 and 11 respectively. It is the specific case of the petitioners that except the petitioners all other have been appointed on the post of Panchayat Sewak. It the further case of the petitioners that the recommendation of the Deputy Commissioner dated 29.05.2012 was illegally and arbitrarily rejected by the Director, Panchayati Raj. 4, 6 and 11 respectively. It is the specific case of the petitioners that except the petitioners all other have been appointed on the post of Panchayat Sewak. It the further case of the petitioners that the recommendation of the Deputy Commissioner dated 29.05.2012 was illegally and arbitrarily rejected by the Director, Panchayati Raj. Hence, the petitioners were not appointment but subsequently, the Deputy Commissioner, West Singhbhum at Chaibasa vide his letter dated 24.11.2012 had again requested the Director, Panchayati Raj for appointment of the petitioners to the post of Panchayat Sewak/Panchayat Sachiv but till date no orders have been passed neither the cases of the petitioners have been reviewed and hence, this writ petition has been preferred. 4. Mr. Sumeet Gadodia assisted by Mr. Anurag Kashyap, learned counsel appearing for the petitioners strenuously urges that the Deputy Commissioner is the appointing authority of Panchayat Sewak/Panchayat Sachiv and after considering the entire facts, he has recommended the cases of the petitioners earlier on 29.05.2012 but the same was illegally and arbitrarily turned down by the respondents-Director, Panchayati Raj, which is not tenable in the eyes of law. Learned counsel further argues that bone of contention for appointment of these petitioners on the post of Panchayat Sewak was the issue regarding consideration of period during which these petitioners were posted as Dalpati. Admittedly, these petitioners have served for more than 12 years as Dalpati. The period during which they were out of service shall be counted for the purpose of experience, because it was the respondents themselves, who have illegally terminated the services of the petitioners and subsequently, the termination order was quashed and set aside. Learned counsel further argued that when the termination order was found to be illegal in the eyes of law, it cannot be said that the petitioners have not fulfilled the requisite qualifications regarding experience, which the other candidates are also fulfilling. It was further argued by the learned counsel for the petitioners that the Deputy Commissioner, who is the appointing authority for the post of Panchayat Sewak, has given recommendation to the cases of the petitioners on 24.11.2012 with a request to the Director, Panchayat Raj to review the earlier order of rejection. In the recommendation of the Deputy Commissioner, reasons have been assigned for review of the rejection order. In view of the recommendation of the Deputy Commissioner, Mr. In the recommendation of the Deputy Commissioner, reasons have been assigned for review of the rejection order. In view of the recommendation of the Deputy Commissioner, Mr. Gadodia argues that a direction may be given to the Director, Panchayati Raj to review the order of rejection and after review, the Deputy Commissioner may be directed to appoint the petitioners with all consequential benefits. 5. Per contra counter-affidavit has been filed by the respondents. Mr. Anoop Kumar Agarwal, learned counsel for the respondents vehemently opposes the contention of the petitioners and argues that in no way cases of the petitioners can be considered as the recommendation dated 29.05.2012 has already been turned down by letter dated 14.07.2012 of the Director, Panchayati Raj. Mr. Agarwal further argues that once the appointment or the recommendations have been turned down, no fresh orders can be passed and as such, there is no illegality or any infirmity in not appointing the petitioners as they did not fulfill any requisite qualifications. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the cases of the petitioners need consideration. In the instant case, the petitioners are entitled for regularization of the period during which they were out of service. It was not the fault of the petitioners but it was due to the illegal order of termination passed by the respondents themselves by virtue of which the petitioners were kept out of service. In the instant case, admittedly the petitioners have fulfilled the requisite qualifications for appointment on the post of Panchayat Sewak/Panchayat Sachiv by rendering more than 12 years of service and if the services of the petitioners are counted, during which they were out of services, their total experience would be more than 17 years and as such, they are fully entitled for appointment to the post of Panchayat Sewak/ Panchayat Sachiv. Admittedly, the Deputy Commissioner is the appointing authority for making appointment to the post of Panchayat Sewak/Panchayat Sachiv. When the appointing authority has recommended the cases of the petitioners with reasoned order, it was expected and it was obligatory also on the part of the Director to review the order. Admittedly, there is no right of a person to be appointed against a particular post but there is always a right of consideration of his candidature for appointment. When the appointing authority has recommended the cases of the petitioners with reasoned order, it was expected and it was obligatory also on the part of the Director to review the order. Admittedly, there is no right of a person to be appointed against a particular post but there is always a right of consideration of his candidature for appointment. In the instant case, action of the respondent-Director amounts to violation of Article 14 and 16 of the Constitution of India. 7. As the Deputy Commissioner has already recommended the cases of the petitioners vide his letter dated 24.11.2012, with a request to the Director, Panchayati Raj, Govt. of Jharkhand for appointment of the petitioners along with necessary details pertaining to their date of birth, date of appointment, period of service/experience, etc. with a request to review their cases, I hereby direct the respondent-Director, Panchayati Raj to review the order in view of recommendation of the Deputy Commissioner, as early as possible, preferably within a period of three weeks from the date of receipt of copy of this order. Needless to say that after receiving such orders, the Deputy Commissioner should pass orders for appointment of the petitioners on the post of Panchayat Sewak/Panchayat Sachiv with all consequential benefits within a further period of two weeks. 8. Resultantly, the writ petition stands allowed.